[United States Statutes at Large, Volume 117, 108th Congress, 1st Session]
[From the U.S. Government Printing Office, www.gpo.gov]
117 STAT. 782
Public Law 108-34
108th Congress
An Act
To approve the settlement of the water rights claims of the Zuni Indian
Tribe in Apache County, Arizona, and for other purposes. [NOTE: June
23, 2003 - [S. 222]]
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress [NOTE: Zuni Indian Tribe Water
Rights Settlement Act of 2003.] assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Zuni Indian Tribe Water Rights
Settlement Act of 2003''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) It is the policy of the United States, in keeping with
its trust responsibility to Indian tribes, to promote Indian
self-determination, religious freedom, political and cultural
integrity, and economic self-sufficiency, and to settle,
wherever possible, the water rights claims of Indian tribes
without lengthy and costly litigation.
(2) Quantification of rights to water and development of
facilities needed to use tribal water supplies effectively is
essential to the development of viable Indian reservation
communities, particularly in arid western States.
(3) On August 28, 1984, and by actions subsequent thereto,
the United States established a reservation for the Zuni Indian
Tribe in Apache County, Arizona upstream from the confluence of
the Little Colorado and Zuni Rivers for long-standing religious
and sustenance activities.
(4) The water rights of all water users in the Little
Colorado River basin in Arizona have been in litigation since
1979, in the Superior Court of the State of Arizona in and for
the County of Apache in Civil No. 6417, In re The General
Adjudication of All Rights to Use Water in the Little Colorado
River System and Source.
(5) Recognizing that the final resolution of the Zuni Indian
Tribe's water claims through litigation will take many years and
entail great expense to all parties, continue to limit the
Tribe's access to water with economic, social, and cultural
consequences to the Tribe, prolong uncertainty as to the
availability of water supplies, and seriously impair the long-
term economic planning and development of all parties, the Tribe
and neighboring non-Indians have sought to settle their disputes
to water and reduce the burdens of litigation.
(6) After more than 4 years of negotiations, which included
participation by representatives of the United States, the Zuni
Indian Tribe, the State of Arizona, and neighboring non-Indian
[[Page 783]]
117 STAT. 783
communities in the Little Colorado River basin, the parties have
entered into a Settlement Agreement to resolve all of the Zuni
Indian Tribe's water rights claims and to assist the Tribe in
acquiring surface water rights, to provide for the Tribe's use
of groundwater, and to provide for the wetland restoration of
the Tribe's lands in Arizona.
(7) To facilitate the wetland restoration project
contemplated under the Settlement Agreement, the Zuni Indian
Tribe acquired certain lands along the Little Colorado River
near or adjacent to its Reservation that are important for the
success of the project and will likely acquire a small amount of
similarly situated additional lands. The parties have agreed not
to object to the United States taking title to certain of these
lands into trust status; other lands shall remain in tribal fee
status. The parties have worked extensively to resolve various
governmental concerns regarding use of and control over those
lands, and to provide a successful model for these types of
situations, the State, local, and tribal governments intend to
enter into an Intergovernmental Agreement that addresses the
parties' governmental concerns.
(8) Pursuant to the Settlement Agreement, the neighboring
non-Indian entities will assist in the Tribe's acquisition of
surface water rights and development of groundwater, store
surface water supplies for the Zuni Indian Tribe, and make
substantial additional contributions to carry out the Settlement
Agreement's provisions.
(9) To advance the goals of Federal Indian policy and
consistent with the trust responsibility of the United States to
the Tribe, it is appropriate that the United States participate
in the implementation of the Settlement Agreement and contribute
funds for the rehabilitation of religious riparian areas and
other purposes to enable the Tribe to use its water entitlement
in developing its Reservation.
(b) Purposes.--The purposes of this Act are--
(1) to approve, ratify, and confirm the Settlement Agreement
entered into by the Tribe and neighboring non-Indians;
(2) to authorize and direct the Secretary of the Interior to
execute and perform the Settlement Agreement and related
waivers;
(3) to authorize and direct the United States to take legal
title and hold such title to certain lands in trust for the
benefit of the Zuni Indian Tribe; and
(4) to authorize the actions, agreements, and appropriations
as provided for in the Settlement Agreement and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Eastern lcr basin.--The term ``Eastern LCR basin'' means
the portion of the Little Colorado River basin in Arizona
upstream of the confluence of Silver Creek and the Little
Colorado River, as identified on Exhibit 2.10 of the Settlement
Agreement.
(2) Fund.--The term ``Fund'' means the Zuni Indian Tribe
Water Rights Development Fund established by section 6(a).
(3) Intergovernmental agreement.--The term
``Intergovernmental Agreement'' means the intergovernmental
agreement between the Zuni Indian Tribe, Apache County, Arizona
and
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117 STAT. 784
the State of Arizona described in article 6 of the Settlement
Agreement.
(4) Pumping protection agreement.--The term ``Pumping
Protection Agreement'' means an agreement, described in article
5 of the Settlement Agreement, between the Zuni Tribe, the
United States on behalf of the Tribe, and a local landowner
under which the landowner agrees to limit pumping of groundwater
on his lands in exchange for a waiver of certain claims by the
Zuni Tribe and the United States on behalf of the Tribe.
(5) Reservation; zuni heaven reservation.--The term
``Reservation'' or ``Zuni Heaven Reservation'', also referred to
as ``Kolhu:wala:wa'', means the following property in Apache
County, Arizona: Sections 26, 27, 28, 33, 34, and 35, Township
15 North, Range 26 East, Gila and Salt River Base and Meridian;
and Sections 2, 3, 4, 9, 10, 11, 13, 14, 15, 16, 23, 26, and 27,
Township 14 North, Range 26 East, Gila and Salt River Base and
Meridian.
(6) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(7) Settlement agreement.--The term ``Settlement Agreement''
means that agreement dated June 7, 2002, together with all
exhibits thereto. The parties to the Settlement Agreement
include the Zuni Indian Tribe and its members, the United States
on behalf of the Tribe and its members, the State of Arizona,
the Arizona Game and Fish Commission, the Arizona State Land
Department, the Arizona State Parks Board, the St. Johns
Irrigation and Ditch Co., the Lyman Water Co., the Round Valley
Water Users' Association, the Salt River Project Agricultural
Improvement and Power District, the Tucson Electric Power
Company, the City of St. Johns, the Town of Eagar, and the Town
of Springerville.
(8) SRP.--The term ``SRP'' means the Salt River Project
Agricultural Improvement and Power District, a political
subdivision of the State of Arizona.
(9) TEP.--The term ``TEP'' means Tucson Electric Power
Company.
(10) Tribe, zuni tribe, or zuni indian tribe.--The terms
``Tribe'', ``Zuni Tribe'', or ``Zuni Indian Tribe'' means the
body politic and federally recognized Indian nation, and its
members.
(11) Zuni lands.--The term ``Zuni Lands'' means all the
following lands, in the State of Arizona, that, on the effective
date described in section 9(a), are--
(A) within the Zuni Heaven Reservation;
(B) held in trust by the United States for the
benefit of the Tribe or its members; or
(C) held in fee within the Little Colorado River
basin by or for the Tribe.
SEC. 4. AUTHORIZATION, RATIFICATIONS, AND CONFIRMATIONS.
(a) Settlement Agreement.--To the extent the Settlement Agreement
does not conflict with the provisions of this Act, such Settlement
Agreement is hereby approved, ratified, confirmed, and declared to be
valid. The Secretary is authorized and directed to execute the
Settlement Agreement and any amendments approved by the parties
necessary to make the Settlement Agreement consistent with this Act. The
Secretary is further authorized
[[Page 785]]
117 STAT. 785
to perform any actions required by the Settlement Agreement and any
amendments to the Settlement Agreement that may be mutually agreed upon
by the parties to the Settlement Agreement.
(b) Authorization of Appropriations.--There is authorized to be
appropriated to the Zuni Indian Tribe Water Rights Development Fund
established in section 6(a), $19,250,000, to be allocated by the
Secretary as follows:
(1) $3,500,000 for fiscal year 2004, to be used for the
acquisition of water rights and associated lands, and other
activities carried out, by the Zuni Tribe to facilitate the
enforceability of the Settlement Agreement, including the
acquisition of at least 2,350 acre-feet per year of water rights
before the deadline described in section 9(b).
(2) $15,750,000, of which $5,250,000 shall be made available
for each of fiscal years 2004, 2005, and 2006, to take actions
necessary to restore, rehabilitate, and maintain the Zuni Heaven
Reservation, including the Sacred Lake, wetlands, and riparian
areas as provided for in the Settlement Agreement and under this
Act.
(c) Other Agreements.--Except as provided in section 9, the
following 3 separate agreements, together with all amendments thereto,
are approved, ratified, confirmed, and declared to be valid:
(1) The agreement between SRP, the Zuni Tribe, and the
United States on behalf of the Tribe, dated June 7, 2002.
(2) The agreement between TEP, the Zuni Tribe, and the
United States on behalf of the Tribe, dated June 7, 2002.
(3) The agreement between the Arizona State Land Department,
the Zuni Tribe, and the United States on behalf of the Tribe,
dated June 7, 2002.
SEC. 5. TRUST LANDS.
(a) New Trust Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, and after the requirements of
section 9(a) have been met, the Secretary shall take the legal title of
the following lands into trust for the benefit of the Zuni Tribe:
(1) In T. 14 N., R. 27 E., Gila and Salt River Base and
Meridian:
(A) Section 13: SW 1/4, S 1/2 NE 1/4 SE 1/4, W
1/2 SE 1/4, SE 1/4 SE 1/4;
(B) Section 23: N 1/2, N 1/2 SW 1/4, N 1/2 SE
1/4, SE 1/4 SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SW
1/4 SE 1/4;
(C) Section 24: NW 1/4, SW 1/4, S 1/2 NE 1/4, N 1/2
SE 1/4; and
(D) Section 25: N 1/2 NE 1/4, SE 1/4 NE 1/4, NE 1/4
SE 1/4.
(2) In T. 14 N., R. 28 E., Gila and Salt River Base and
Meridian:
(A) Section 19: W 1/2 E 1/2 NW 1/4, W 1/2 NW
1/4, W 1/2 NE 1/4 SW 1/4, NW 1/4 SW 1/4, S 1/2 SW 1/4;
(B) Section 29: SW 1/4 SW 1/4 NW 1/4, NW 1/4 NW 1/4
SW 1/4, S 1/2 N 1/2 SW 1/4, S 1/2 SW 1/4, S
1/2 NW 1/4 SE 1/4, SW 1/4 SE 1/4;
(C) Section 30: W 1/2, SE 1/4; and
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117 STAT. 786
(D) Section 31: N 1/2 NE 1/4, N 1/2 S 1/2 NE
1/4, S 1/2 SE 1/4 NE 1/4, NW 1/4, E 1/2 SW 1/4, N
1/2 NW 1/4 SW 1/4, SE 1/4 NW 1/4 SW 1/4, E 1/2 SW 1/4 SW
1/4, SW 1/4 SW 1/4 SW 1/4.
(b) Future Trust Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, after the requirements of
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the
Secretary shall take the legal title of the following lands into trust
for the benefit of the Zuni Tribe:
(1) In T. 14 N., R. 26E., Gila and Salt River Base and
Meridian: Section 25: N 1/2 NE 1/4, N 1/2 S 1/2 NE 1/4, NW 1/4,
N 1/2 NE 1/4 SW 1/4, NE 1/4 NW 1/4 SW 1/4.
(2) In T. 14 N., R. 27 E., Gila and Salt River Base and
Meridian:
(A) Section 14: SE 1/4 SW 1/4, SE 1/4;
(B) Section 16: S 1/2 SW 1/4 SE 1/4;
(C) Section 19: S 1/2 SE 1/4 SE 1/4;
(D) Section 20: S 1/2 SW 1/4 SW 1/4, E 1/2 SE
1/4 SE 1/4;
(E) Section 21: N 1/2 NE 1/4, E 1/2 NE 1/4 NW
1/4, SE 1/4 NW 1/4, W 1/2 SW 1/4 NE 1/4, N 1/2 NE 1/4 SW
1/4, SW 1/4 NE 1/4 SW 1/4, E 1/2 NW 1/4 SW 1/4, SW 1/4
NW 1/4 SW 1/4, W 1/2 SW 1/4 SW 1/4;
(F) Section 22: SW 1/4 NE 1/4 NE 1/4, NW 1/4 NE 1/4,
S 1/2 NE 1/4, N 1/2 NW 1/4, SE 1/4 NW 1/4, N
1/2 SW 1/4 NW 1/4, SE 1/4 SW 1/4 NW 1/4, N 1/2 N 1/2 SE
1/4, N 1/2 NE 1/4 SW 1/4;
(G) Section 24: N 1/2 NE 1/4, S 1/2 SE 1/4;
(H) Section 29: N 1/2 N 1/2;
(I) Section 30: N 1/2 N 1/2, N 1/2 S 1/2 NW 1/4, N
1/2 SW 1/4 NE 1/4; and
(J) Section 36: SE 1/4 SE 1/4 NE 1/4, NE 1/4 NE 1/4
SE 1/4.
(3) In T. 14 N., R. 28 E., Gila and Salt River Base and
Meridian:
(A) Section 18: S 1/2 NE 1/4, NE 1/4 SW 1/4, NE 1/4
NW 1/4 SW 1/4, S 1/2 NW 1/4 SW 1/4, S 1/2 SW 1/4, N 1/2
SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SE
1/4;
(B) Section 30: S 1/2 NE 1/4, W 1/2 NW 1/4 NE
1/4; and
(C) Section 32: N 1/2 NW 1/4 NE 1/4, SW 1/4 NE 1/4,
S 1/2 SE 1/4 NE 1/4, NW 1/4, SW 1/4, N 1/2 SE 1/4, SW 1/
4 SE 1/4, N 1/2 SE 1/4 SE 1/4, SW 1/4 SE 1/4 SE 1/4.
(c) New Reservation Lands.--Upon satisfaction of the conditions in
paragraph 6.2 of the Settlement Agreement, after the requirements of
section 9(a) have been met, and upon acquisition by the Zuni Tribe, the
Secretary shall take the legal title of the following lands in Arizona
into trust for the benefit of the Zuni Tribe and make such lands part of
the Zuni Indian Tribe Reservation in Arizona: Section 34, T. 14 N., R.
26 E., Gila and Salt River Base and Meridian.
(d) Limitation on Secretarial Discretion.--The Secretary shall have
no discretion regarding the acquisitions described in subsections (a),
(b), and (c).
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117 STAT. 787
(e) Lands Remaining in Fee Status.--The Zuni Tribe may seek to have
the legal title to additional lands in Arizona, other than the lands
described in subsection (a), (b), or (c), taken into trust by the United
States for the benefit of the Zuni Indian Tribe pursuant only to an Act
of Congress enacted after the date of enactment of this Act specifically
authorizing the transfer for the benefit of the Zuni Tribe.
(f) Final Agency Action.--Any written certification by the Secretary
under subparagraph 6.2.B of the Settlement Agreement constitutes final
agency action under the Administrative Procedure Act and is reviewable
as provided for under chapter 7 of title 5, United States Code.
(g) No Federal Water Rights.--Lands taken into trust pursuant to
subsection (a), (b), or (c) shall not have Federal reserved rights to
surface water or groundwater.
(h) State Water Rights.--The water rights and uses for the lands
taken into trust pursuant to subsection (a) or (c) must be determined
under subparagraph 4.1.A and article 5 of the Settlement Agreement. With
respect to the lands taken into trust pursuant to subsection (b), the
Zuni Tribe retains any rights or claims to water associated with these
lands under State law, subject to the terms of the Settlement Agreement.
(i) Forfeiture and Abandonment.--Water rights that are appurtenant
to lands taken into trust pursuant to subsection (a), (b), or (c) shall
not be subject to forfeiture and abandonment.
(j) Ad Valorem Taxes.--With respect to lands that are taken into
trust pursuant to subsection (a) or (b), the Zuni Tribe shall make
payments in lieu of all current and future State, county, and local ad
valorem property taxes that would otherwise be applicable to those lands
if they were not in trust.
(k) Authority of Tribe.--For purposes of complying with this section
and article 6 of the Settlement Agreement, the Tribe is authorized to
enter into--
(1) the Intergovernmental Agreement between the Zuni Tribe,
Apache County, Arizona, and the State of Arizona; and
(2) any intergovernmental agreement required to be entered
into by the Tribe under the terms of the Intergovernmental
Agreement.
(l) Federal Acknowledgement of Intergovernmental Agreements.--
(1) In general.--The Secretary shall acknowledge the terms
of any intergovernmental agreement entered into by the Tribe
under this section.
(2) No abrogation.--The Secretary shall not seek to
abrogate, in any administrative or judicial action, the terms of
any intergovernmental agreement that are consistent with
subparagraph 6.2.A of the Settlement Agreement and this Act.
(3) Removal.--
(A) In general.--Except as provided in subparagraph
(B), if a judicial action is commenced during a dispute
over any intergovernmental agreement entered into under
this section, and the United States is allowed to
intervene in such action, the United States shall not
remove such action to the Federal courts.
(B) Exception.--The United States may seek removal
if--
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117 STAT. 788
(i) the action concerns the Secretary's
decision regarding the issuance of rights-of-way
under section 8(c);
(ii) the action concerns the authority of a
Federal agency to administer programs or the
issuance of a permit under--
(I) the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.);
(II) the Safe Drinking Water Act (42
U.S.C. 300f et seq.);
(III) the Clean Air Act (42 U.S.C.
7401 et seq.); or
(IV) any other Federal law
specifically addressed in
intergovernmental agreements; or
(iii) the intergovernmental agreement is
inconsistent with a Federal law for the protection
of civil rights, public health, or welfare.
(m) Rule of Construction.--Nothing in this Act shall be construed to
affect the application of the Act of May 25, 1918 (25 U.S.C. 211) within
the State of Arizona.
(n) Disclaimer.--Nothing in this section repeals, modifies, amends,
changes, or otherwise affects the Secretary's obligations to the Zuni
Tribe pursuant to the Act entitled ``An Act to convey certain lands to
the Zuni Indian Tribe for religious purposes'' approved August 28, 1984
(Public Law 98-408; 98 Stat. 1533) (and as amended by the Zuni Land
Conservation Act of 1990 (Public Law 101-486; 104 Stat. 1174)).
SEC. 6. DEVELOPMENT FUND.
(a) Establishment of the Fund.--
(1) In general.--There is established in the Treasury of the
United States a fund to be known as the ``Zuni Indian Tribe
Water Rights Development Fund'', to be managed and invested by
the Secretary, consisting of--
(A) the amounts authorized to be appropriated in
section 4(b); and
(B) the appropriation to be contributed by the State
of Arizona pursuant to paragraph 7.6 of the Settlement
Agreement.
(2) Additional deposits.--The Secretary shall deposit in the
Fund any other monies paid to the Secretary on behalf of the
Zuni Tribe pursuant to the Settlement Agreement.
(b) Management of the Fund.--The Secretary shall manage the Fund,
make investments from the Fund, and make monies available from the Fund
for distribution to the Zuni Tribe consistent with the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.)
(referred to in this section as the ``Trust Fund Reform Act''), this
Act, and the Settlement Agreement.
(c) Investment of the Fund.--The Secretary shall invest amounts in
the Fund in accordance with--
(1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C.
161);
(2) the first section of the Act of June 24, 1938 (52 Stat.
1037, ch. 648, 25 U.S.C. 162a); and
(3) subsection (b).
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117 STAT. 789
(d) Availability of Amounts From the Fund.--The funds authorized to
be appropriated pursuant to section 3104(b)(2) and funds contributed by
the State of Arizona pursuant to paragraph 7.6 of the Settlement
Agreement shall be available for expenditure or withdrawal only after
the requirements of section 9(a) have been met.
(e) Expenditures and Withdrawal.--
(1) Tribal management plan.--
(A) In general.--The Zuni Tribe may withdraw all or
part of the Fund on approval by the Secretary of a
tribal management plan as described in the Trust Fund
Reform Act.
(B) Requirements.--In addition to the requirements
under the Trust Fund Reform Act, the tribal management
plan shall require that the Zuni Tribe spend any funds
in accordance with the purposes described in section
4(b).
(2) Enforcement.--The Secretary may take judicial or
administrative action to enforce the provisions of any tribal
management plan to ensure that any monies withdrawn from the
Fund under the plan are used in accordance with this Act.
(3) Liability.--If the Zuni Tribe exercises the right to
withdraw monies from the Fund, neither the Secretary nor the
Secretary of the Treasury shall retain any liability for the
expenditure or investment of the monies withdrawn.
(4) Expenditure plan.--
(A) In general.--The Zuni Tribe shall submit to the
Secretary for approval an expenditure plan for any
portion of the funds made available under this Act that
the Zuni Tribe does not withdraw under this subsection.
(B) Description.--The expenditure plan shall
describe the manner in which, and the purposes for
which, funds of the Zuni Tribe remaining in the Fund
will be used.
(C) Approval.--On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is
reasonable and consistent with this Act.
(5) Annual report.--The Zuni Tribe shall submit to the
Secretary an annual report that describes all expenditures from
the Fund during the year covered by the report.
(f) Funds for Acquisition of Water Rights.--
(1) Water rights acquisitions.--Notwithstanding subsection
(e), the funds authorized to be appropriated pursuant to section
4(b)(1)--
(A) shall be available upon appropriation for use in
accordance with section 4(b)(1); and
(B) shall be distributed by the Secretary to the
Zuni Tribe on receipt by the Secretary from the Zuni
Tribe of a written notice and a tribal council
resolution that describe the purposes for which the
funds will be used.
(2) Right to set off.--In the event the requirements of
section 9(a) have not been met and the Settlement Agreement has
become null and void under section 9(b), the United States shall
be entitled to set off any funds expended or withdrawn from the
amount appropriated pursuant to section 4(b)(1), together with
any interest accrued, against any claims asserted
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117 STAT. 790
by the Zuni Tribe against the United States relating to water
rights at the Zuni Heaven Reservation.
(3) Water rights.--Any water rights acquired with funds
described in paragraph (1) shall be credited against any water
rights secured by the Zuni Tribe, or the United States on behalf
of the Zuni Tribe, for the Zuni Heaven Reservation in the Little
Colorado River General Stream Adjudication or in any future
settlement of claims for those water rights.
(g) No Per Capita Distributions.--No part of the Fund shall be
distributed on a per capita basis to members of the Zuni Tribe.
SEC. 7. CLAIMS EXTINGUISHMENT; WAIVERS AND RELEASES.
(a) Full Satisfaction of Members' Claims.--
(1) In general.--The benefits realized by the Tribe and its
members under this Act, including retention of any claims and
rights, shall constitute full and complete satisfaction of all
members' claims for--
(A) water rights under Federal, State, and other
laws (including claims for water rights in groundwater,
surface water, and effluent) for Zuni Lands from time
immemorial through the effective date described in
section 9(a) and any time thereafter; and
(B) injuries to water rights under Federal, State,
and other laws (including claims for water rights in
groundwater, surface water, and effluent, claims for
damages for deprivation of water rights, and claims for
changes to underground water table levels) for Zuni
Lands from time immemorial through the effective date
described in section 9(a).
(2) No recognition or establishment of individual water
right.--Nothing in this Act recognizes or establishes any right
of a member of the Tribe to water on the Reservation.
(b) Tribe and United States Authorization and Water Quantity
Waivers.--The Tribe, on behalf of itself and its members and the
Secretary on behalf of the United States in its capacity as trustee for
the Zuni Tribe and its members, are authorized, as part of the
performance of their obligations under the Settlement Agreement, to
execute a waiver and release, subject to paragraph 11.4 of the
Settlement Agreement, for claims against the State of Arizona, or any
agency or political subdivision thereof, or any other person, entity,
corporation, or municipal corporation, under Federal, State, or other
law for any and all--
(1) past, present, and future claims to water rights
(including water rights in groundwater, surface water, and
effluent) for Zuni Lands from time immemorial through the
effective date described in section 9(a) and any time
thereafter, except for claims within the Zuni Protection Area as
provided in article 5 of the Settlement Agreement;
(2) past and present claims for injuries to water rights
(including water rights in groundwater, surface water, and
effluent and including claims for damages for deprivation of
water rights and any claims for changes to underground water
table levels) for Zuni Lands from time immemorial through the
effective date described in section 9(a); and
(3) past, present, and future claims for water rights and
injuries to water rights (including water rights in groundwater,
[[Page 791]]
117 STAT. 791
surface water, and effluent and including any claims for damages
for deprivation of water rights and any claims for changes to
underground water table levels) from time immemorial through the
effective date described in section 9(a), and any time
thereafter, for lands outside of Zuni Lands but located within
the Little Colorado River basin in Arizona, based upon
aboriginal occupancy of lands by the Zuni Tribe or its
predecessors.
(c) Tribal Waivers Against the United States.--The Tribe is
authorized, as part of the performance of its obligations under the
Settlement Agreement, to execute a waiver and release, subject to
paragraphs 11.4 and 11.6 of the Settlement Agreement, for claims against
the United States (acting in its capacity as trustee for the Zuni Tribe
or its members, or otherwise acting on behalf of the Zuni Tribe or its
members), including any agencies, officials, or employees thereof, for
any and all--
(1) past, present, and future claims to water rights
(including water rights in groundwater, surface water, and
effluent) for Zuni Lands, from time immemorial through the
effective date described in section 9(a) and any time
thereafter;
(2) past and present claims for injuries to water rights
(including water rights in groundwater, surface water, and
effluent and any claims for damages for deprivation of water
rights) for Zuni Lands from time immemorial through the
effective date described in section 9(a);
(3) past, present, and future claims for water rights and
injuries to water rights (including water rights in groundwater,
surface water, and effluent and any claims for damages for
deprivation of water rights) from time immemorial through the
effective date described in section 9(a), and any time
thereafter, for lands outside of Zuni Lands but located within
the Little Colorado River basin in Arizona, based upon
aboriginal occupancy of lands by the Zuni Tribe or its
predecessors;
(4) past and present claims for failure to protect, acquire,
or develop water rights of, or failure to protect water quality
for, the Zuni Tribe within the Little Colorado River basin in
Arizona from time immemorial through the effective date
described in section 9(a); and
(5) claims for breach of the trust responsibility of the
United States to the Zuni Tribe arising out of the negotiation
of the Settlement Agreement or this Act.
(d) Tribal Waiver of Water Quality Claims and Interference With
Trust Claims.--
(1) Claims against the state and others.--
(A) Interference with trust responsibility.--The
Tribe, on behalf of itself and its members, is
authorized, as part of the performance of its
obligations under the Settlement Agreement, to waive and
release all claims against the State of Arizona, or any
agency or political subdivision thereof, or any other
person, entity, corporation, or municipal corporation
under Federal, State, or other law, for claims of
interference with the trust responsibility of the United
States to the Zuni Tribe arising out of the negotiation
of the Settlement Agreement or this Act.
(B) Injury or threat of injury to water quality.--
The Tribe, on behalf of itself and its members, is
authorized, as part of the performance of its
obligations under
[[Page 792]]
117 STAT. 792
the Settlement Agreement, to waive and release, subject
to paragraphs 11.4, 11.6, and 11.7 of the Settlement
Agreement, all claims against the State of Arizona, or
any agency or political subdivision thereof, or any
other person, entity, corporation, or municipal
corporation under Federal, State, or other law, for--
(i) any and all past and present claims,
including natural resource damage claims under the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.), the Oil Pollution Act of 1990 (33
U.S.C. 2701 et seq.), or any other applicable
statute, for injury to water quality accruing from
time immemorial through the effective date
described in section 9(a), for lands within the
Little Colorado River basin in the State of
Arizona; and
(ii) any and all future claims, including
natural resource damage claims under the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.), the Oil Pollution Act of 1990 (33
U.S.C. 2701 et seq.), or any other applicable
statute, for injury or threat of injury to water
quality, accruing after the effective date
described in section 9(a), for any lands within
the Eastern LCR basin caused by--
(I) the lawful diversion or use of
surface water;
(II) the lawful withdrawal or use of
underground water, except within the
Zuni Protection Area, as provided in
article 5 of the Settlement Agreement;
(III) the Parties' performance of
any obligations under the Settlement
Agreement;
(IV) the discharge of oil associated
with routine physical or mechanical
maintenance of wells or diversion
structures not inconsistent with
applicable law;
(V) the discharge of oil associated
with routine start-up and operation of
well pumps not inconsistent with
applicable law; or
(VI) any combination of the causes
described in subclauses (I) through (V).
(2) Claims of the united states.--The Tribe, on behalf of
itself and its members, is authorized to waive its right to
request that the United States bring--
(A) any claims for injuries to water quality under
the natural resource damage provisions of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.) or any
other applicable statute, for lands within the Little
Colorado River Basin in the State of Arizona, accruing
from time immemorial through the effective date
described in section 9(a); and
(B) any future claims for injuries or threat of
injury to water quality under the natural resource
damage provisions of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.), the Oil Pollution Act of 1990 (33
U.S.C. 2701 et
[[Page 793]]
117 STAT. 793]]
seq.), or any other applicable statute, accruing after
the effective date described in section 9(a), for any
lands within the Eastern LCR basin, caused by--
(i) the lawful diversion or use of surface
water;
(ii) the lawful withdrawal or use of
underground water, except within the Zuni
Protection Area, as provided in article 5 of the
Settlement Agreement;
(iii) the Parties' performance of any
obligations under the Settlement Agreement;
(iv) the discharge of oil associated with
routine physical or mechanical maintenance of
wells or diversion structures not inconsistent
with applicable law;
(v) the discharge of oil associated with
routine start-up and operation of well pumps not
inconsistent with applicable law; or
(vi) any combination of the causes described
in clauses (i) through (v).
(3) Limitations.--Notwithstanding the authorization for the
Tribe's waiver of future water quality claims in paragraph
(1)(B)(ii) and the waiver in paragraph (2)(B), the Tribe, on
behalf of itself and its members, retains any statutory claims
for injury or threat of injury to water quality under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) and the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.), as described in
subparagraph 11.4(D) (3) and (4) of the Settlement Agreement,
that accrue at least 30 years after the effective date described
in section 9(a).
(e) Waiver of United States Water Quality Claims Related to
Settlement Land and Water.--
(1) Past and present claims.--As part of the performance of
its obligations under the Settlement Agreement, the United
States waives and releases, subject to the retentions in
paragraphs 11.4, 11.6 and 11.7 of the Settlement Agreement, all
claims against the State of Arizona, or any agency or political
subdivision thereof, or any other person, entity, corporation,
or municipal corporation for--
(A) all past and present common law claims accruing
from time immemorial through the effective date
described in section 9(a) arising from or relating to
water quality in which the injury asserted is to the
Tribe's interest in water, trust land, and natural
resources in the Little Colorado River basin in the
State of Arizona; and
(B) all past and present natural resource damage
claims accruing through the effective date described in
section 9(a) arising from or relating to water quality
in which the claim is based on injury to natural
resources or threat to natural resources in the Little
Colorado River basin in Arizona, only for those cases in
which the United States, through the Secretary or other
designated Federal official, would act on behalf of the
Tribe as a natural resource trustee pursuant to the
National Contingency Plan, as set forth, as of the date
of enactment of this Act, in section 300.600(b)(2) of
title 40, Code of Federal Regulations.
(2) Future claims.--As part of the performance of its
obligations under the Settlement Agreement, the United States
[[Page 794]]
117 STAT. 794]]
waives and releases, subject to the retentions in paragraphs
11.4, 11.6 and 11.7 of the Settlement Agreement, the State of
Arizona, or any agency or political subdivision thereof, or any
other person, entity, corporation, or municipal corporation
for--
(A) all future common law claims arising from or
relating to water quality in which the injury or threat
of injury asserted is to the Tribe's interest in water,
trust land, and natural resources in the Eastern LCR
basin in Arizona accruing after the effective date
described in section 9(a) caused by--
(i) the lawful diversion or use of surface
water;
(ii) the lawful withdrawal or use of
underground water, except within the Zuni
Protection Area, as provided in article 5 of the
Settlement Agreement;
(iii) the Parties' performance of any
obligations under the Settlement Agreement;
(iv) the discharge of oil associated with
routine physical or mechanical maintenance of
wells or diversion structures not inconsistent
with applicable law;
(v) the discharge of oil associated with
routine start-up and operation of well pumps not
inconsistent with applicable law; or
(vi) any combination of the causes described
in clauses (i) through (v); and
(B) all future natural resource damage claims
accruing after the effective date described in section
9(a) arising from or relating to water quality in which
the claim is based on injury to natural resources or
threat to natural resources in the Eastern LCR basin in
Arizona, only for those cases in which the United
States, through the Secretary or other designated
Federal official, would act on behalf of the Tribe as a
natural resource trustee pursuant to the National
Contingency Plan, as set forth, as of the date of
enactment of this Act, in section 300.600(b)(2) of title
40, Code of Federal Regulations, caused by--
(i) the lawful diversion or use of surface
water;
(ii) the lawful withdrawal or use of
underground water, except within the Zuni
Protection Area as provided in article 5 of the
Settlement Agreement;
(iii) the Parties' performance of their
obligations under this Settlement Agreement;
(iv) the discharge of oil associated with
routine physical or mechanical maintenance of
wells or diversion structures not inconsistent
with applicable law;
(v) the discharge of oil associated with
routine start-up and operation of well pumps not
inconsistent with applicable law; or
(vi) any combination of the causes described
in clauses (i) through (v).
(f) Effect.--Subject to subsections (b) and (e), nothing in this Act
or the Settlement Agreement affects any right of the United States, or
the State of Arizona, to take any actions, including enforcement
actions, under any laws (including regulations) relating to human
health, safety and the environment.
[[Page 795]]
117 STAT. 795
SEC. 8. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity.--If any party to the Settlement
Agreement or a Pumping Protection Agreement files a lawsuit only
relating directly to the interpretation or enforcement of this Act, the
Settlement Agreement, an agreement described in paragraph (1), (2), or
(3) of section 4(c), or a Pumping Protection Agreement, naming the
United States or the Tribe as a party, or if any other landowner or
water user in the Little Colorado River basin in Arizona files a lawsuit
only relating directly to the interpretation or enforcement of article
11, the rights of de minimis users in subparagraph 4.2.D or the rights
of underground water users under article 5 of the Settlement Agreement,
naming the United States or the Tribe as a party--
(1) the United States, the Tribe, or both may be added as a
party to any such litigation, and any claim by the United States
or the Tribe to sovereign immunity from such suit is hereby
waived, other than with respect to claims for monetary awards
except as specifically provided for in the Settlement Agreement;
and
(2) the Tribe may waive its sovereign immunity from suit in
the Superior Court of Apache County, Arizona for the limited
purposes of enforcing the terms of the Intergovernmental
Agreement, and any intergovernmental agreement required to be
entered into by the Tribe under the terms of the
Intergovernmental Agreement, other than with respect to claims
for monetary awards except as specifically provided in the
Intergovernmental Agreement.
(b) Tribal Use of Water.--
(1) In general.--With respect to water rights made available
under the Settlement Agreement and used on the Zuni Heaven
Reservation--
(A) such water rights shall be held in trust by the
United States in perpetuity, and shall not be subject to
forfeiture or abandonment;
(B) State law shall not apply to water uses on the
Reservation;
(C) the State of Arizona may not regulate or tax
such water rights or uses (except that the court with
jurisdiction over the decree entered pursuant to the
Settlement Agreement or the Norviel Decree Court may
assess administrative fees for delivery of this water);
(D) subject to paragraph 7.7 of the Settlement
Agreement, the Zuni Tribe shall use water made available
to the Zuni Tribe under the Settlement Agreement on the
Zuni Heaven Reservation for any use it deems advisable;
(E) water use by the Zuni Tribe or the United States
on behalf of the Zuni Tribe for wildlife or instream
flow use, or for irrigation to establish or maintain
wetland on the Reservation, shall be considered to be
consistent with the purposes of the Reservation; and
(F)(i) [NOTE: Deadline.] not later than 3 years
after the deadline described in section 9(b), the Zuni
Tribe shall adopt a water code to be approved by the
Secretary for regulation of water use on the lands
identified in subsections (a) and (b) of section 5 that
is reasonably equivalent to State water law (including
statutes relating to dam safety and groundwater
management); and
[[Page 796]]
117 STAT. 796
(ii) until such date as the Zuni Tribe adopts a
water code described in clause (i), the Secretary, in
consultation with the State of Arizona, shall administer
water use and water regulation on lands described in
that clause in a manner that is reasonably equivalent to
State law (including statutes relating to dam safety and
groundwater management).
(2) Limitation.--
(A) In general.--Except as provided in subparagraph
(B), the Zuni Tribe or the United States shall not sell,
lease, transfer, or transport water made available for
use on the Zuni Heaven Reservation to any other place.
(B) Exception.--Water made available to the Zuni
Tribe or the United States for use on the Zuni Heaven
Reservation may be severed and transferred from the
Reservation to other Zuni Lands if the severance and
transfer is accomplished in accordance with State law
(and once transferred to any lands held in fee, such
water shall be subject to State law).
(c) Rights-of-Way.--
(1) New and future trust land.--The land taken into trust
under subsections (a) and (b) of section 5 shall be subject to
existing easements and rights-of-way.
(2) Additional rights-of-way.--
(A) In general.--Notwithstanding any other provision
of law, the Secretary, in consultation with the Tribe,
shall grant additional rights-of-way or expansions of
existing rights-of-way for roads, utilities, and other
accommodations to adjoining landowners if--
(i) the proposed right-of-way is necessary to
the needs of the applicant;
(ii) the proposed right-of-way will not cause
significant and substantial harm to the Tribe's
wetland restoration project or religious
practices; and
(iii) the proposed right-of-way acquisition
will comply with the procedures in part 169 of
title 25, Code of Federal Regulations, not
inconsistent with this subsection and other
generally applicable Federal laws unrelated to the
acquisition of interests across trust lands.
(B) Alternatives.--If the criteria described in
clauses (i) through (iii) of subparagraph (A) are not
met, the Secretary may propose an alternative right-of-
way, or other accommodation that complies with the
criteria.
(d) Certain Claims Prohibited.--The United States shall make no
claims for reimbursement of costs arising out of the implementation of
this Act or the Settlement Agreement against any Indian-owned land
within the Tribe's Reservation, and no assessment shall be made in
regard to such costs against such lands.
(e) Vested Rights.--Except as described in paragraph 5.3 of the
Settlement Agreement (recognizing the Zuni Tribe's use of 1,500 acre-
feet per annum of groundwater) this Act and the Settlement Agreement do
not create any vested right to groundwater under Federal or State law,
or any priority to the use of groundwater that would be superior to any
other right or use of groundwater under Federal or State law, whether
through this Act, the
[[Page 797]]
117 STAT. 797
Settlement Agreement, or by incorporation of any abstract, agreement, or
stipulation prepared under the Settlement Agreement. Notwithstanding the
preceding sentence, the rights of parties to the agreements referred to
in paragraph (1), (2), or (3) of section 4(c) and paragraph 5.8 of the
Settlement Agreement, as among themselves, shall be as stated in those
agreements.
(f) Other Claims.--Nothing in the Settlement Agreement or this Act
quantifies or otherwise affects the water rights, claims, or
entitlements to water of any Indian tribe, band, or community, other
than the Zuni Indian Tribe.
(g) No Major Federal Action.--
(1) In general.--Execution of the Settlement Agreement by
the Secretary as provided for in section 4(a) shall not
constitute major Federal action under the National Environmental
Policy Act (42 U.S.C. 4321 et seq.).
(2) Settlement agreement.--In implementing the Settlement
Agreement, the Secretary shall comply with all aspects of--
(A) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); and
(C) all other applicable environmental laws
(including regulations).
SEC. 9. EFFECTIVE DATE FOR WAIVER AND RELEASE AUTHORIZATIONS.
(a) In General.--The waiver and release authorizations contained in
subsections (b) and (c) of section 7 shall become effective as of the
date the Secretary causes to be published in the Federal
Register [NOTE: Federal Register, publication.] a statement of all the
following findings:
(1) This Act has been enacted in a form approved by the
parties in paragraph 3.1.A of the Settlement Agreement.
(2) The funds authorized by section 4(b) have been
appropriated and deposited into the Fund.
(3) The State of Arizona has appropriated and deposited into
the Fund the amount required by paragraph 7.6 of the Settlement
Agreement.
(4) The Zuni Indian Tribe has either purchased or acquired
the right to purchase at least 2,350 acre-feet per annum of
surface water rights, or waived this condition as provided in
paragraph 3.2 of the Settlement Agreement.
(5) Pursuant to subparagraph 3.1.D of the Settlement
Agreement, the severance and transfer of surface water rights
that the Tribe owns or has the right to purchase have been
conditionally approved, or the Tribe has waived this condition
as provided in paragraph 3.2 of the Settlement Agreement.
(6) Pursuant to subparagraph 3.1.E of the Settlement
Agreement, the Tribe and Lyman Water Company have executed an
agreement relating to the process of the severance and transfer
of surface water rights acquired by the Zuni Tribe or the United
States, the pass-through, use, or storage of the Tribe's surface
water rights in Lyman Lake, and the operation of Lyman Dam.
(7) Pursuant to subparagraph 3.1.F of the Settlement
Agreement, all the parties to the Settlement Agreement have
[[Page 798]]
117 STAT. 798
agreed and stipulated to certain Arizona Game and Fish abstracts
of water uses.
(8) Pursuant to subparagraph 3.1.G of the Settlement
Agreement, all parties to the Settlement Agreement have agreed
to the location of an observation well and that well has been
installed.
(9) Pursuant to subparagraph 3.1.H of the Settlement
Agreement, the Zuni Tribe, Apache County, Arizona and the State
of Arizona have executed an Intergovernmental Agreement that
satisfies all of the conditions in paragraph 6.2 of the
Settlement Agreement.
(10) The Zuni Tribe has acquired title to the section of
land adjacent to the Zuni Heaven Reservation described as
Section 34, Township 14 North, Range 26 East, Gila and Salt
River Base and Meridian.
(11) The Settlement Agreement has been modified if and to
the extent it is in conflict with this Act and such modification
has been agreed to by all the parties to the Settlement
Agreement.
(12) A court of competent jurisdiction has approved the
Settlement Agreement by a final judgment and decree.
(b) Deadline for Effective Date.--If the publication in the Federal
Register required under subsection (a) has not occurred by December 31,
2006, sections 4 and 5, and any agreements entered into pursuant to
sections 4 and 5 (including the Settlement Agreement and the
Intergovernmental Agreement) shall not thereafter be effective and shall
be null and void. Any funds and the interest accrued thereon
appropriated pursuant to section 4(b)(2) shall revert to the Treasury,
and any funds and the interest accrued thereon appropriated pursuant to
paragraph 7.6 of the Settlement Agreement shall revert to the State of
Arizona.
Approved June 23, 2003.
LEGISLATIVE HISTORY--S. 222:
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SENATE REPORTS: No. 108-18 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 149 (2003):
Mar. 13, considered and passed Senate.
June 3, considered and rejected in House.
June 5, considered and passed House.